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Dr. Harrison Pope, the Harvard-based psychiatrist who testifies for the defense in recovered memory cases, lost a case in New Hampshire last fall that merits close attention. New Hampshire is known for the Hungerford case, the 1997 state supreme court decision that set forth such strict conditions on the admissibility of recovered memory testimony that most people consider the decision to constitute a ban.

The obvious result of the Hungerford decision is that prosecutors are highly unlikely to bring cases based on recovered memories. The unintended consequence, however, is that it has become a standard defense tactic in New Hampshire to assert that the complainant is based on recovered memory, regardless of the facts.

That is precisely what happened in the criminal case against Murray Huber, Jr. who was charged with 16 counts of sexual abuse and incest. The complainant, known as A.H., disclosed to a boyfriend over time, in bits and pieces. Then she went to police.

Enter Dr. Pope, who never actually examined A.H., but nevertheless concluded “to a reasonable medical certainty” that she had unreliable recovered memories. Pope reached this conclusion despite the fact that A.H.’s medical records included a notation from her primary physician that A.H. “has always known [about the abuse] and this was not a realization late in life.”

Dr. Pope’s testimony strayed far beyond his expertise, which pertains mostly to eating disorders and steroid use. Pope explained A.H.’s PTSD symptoms away by drawing an analogyto those who believe they have been abducted by UFOs. Commenting on the fact that A.H had sent her father greeting cards, Pope opined, without supporting authority, that in his “clinical experience, it would be very unusual that an individual who had memories of having been repeatedly sexually abused by her father would go to the effort of sending him numerous greeting cards.”

The court found that A.H.’s memories did not have to be subject to the Hungerford framework. In other words, the court agreed that A.H. had remembered all along. In rejecting Dr. Pope’s conclusions, Presiding Justice Marguerite Wageling noted wryly that “Dr. Pope’s 68-page curriculum vita does not provide any indication that he has developed expertise in interpersonal violence or the possible behavioral spectrum of victims of interpersonal violence.” [1]

In short, she permitted A.H. to testify. Rather than proceed to trial and challenge her memory, however, Mr. Huber pleaded guilty two months later. He was sentenced to one year in prison with 20 years suspended. Conditions included enrolling in Sex Offender Treatment.

This was not a false memory and it was not a recovered memory. It was a real case of sustained sexual abuse in which Dr. Pope was willing to impugn the victim’s memory “to a medical certainty” without ever having examined her. If this is not an ethical violation, it certainly should be.

[1] Order on Defendant’s Motion to Dismiss: Recovered Memory, State v. Huber. Docket No. 218-2016-CR-189,238. Rockingham County Superior Court, New Hampshire. (Thanks to Linda McEwen for obtaining this unpublished order.)